On April 3, 2018, managing attorney Kimberly Penix argued before the Colorado Court of Appeals in Denver on behalf of Defendant-Appellant Craig Edward Nelson in The People of the State of Colorado v. Craig Edward Nelson. The primary issue in the case was whether the People shifted the burden of proof to Nelson by cross-examining him on whether he could prove his factual contentions, and arguing in closing that Nelson enjoyed “no special deference” at trial. Video of Attorney Penix’s oral argument is available here:

In Colorado, a direct appeal is an appeal from a trial court decision, filed immediately following entry of judgment within the trial court. On direct appeal, Colorado appellants may only argue alleged legal errors made by the lower court. Commonly alleged trial court errors include the improper admission of evidence, an incorrect jury instruction, or a conviction based on insufficient evidence. Importantly, a defendant cannot argue that he received ineffective assistance of counsel in a direct appeal.

Generally, an appellant filing a direct appeal argues that, due to an error committed by the trial court, a particular judgment should be reversed. Even if the reviewing court finds error, however, reversal is not guaranteed. Most errors are reviewed for harmlessness, meaning that an error will only require reversal where there is a reasonable probability that the error had an impact on the outcome of the case.

Appellants must be aware that a “win” on direct appeal – reversal of a judgment – often results in a remand of the case to the trial level court where the case may be re-tried. This is an especially important consideration for criminal defendants, who may face new charges and longer sentences should a new conviction be entered on remand.

A losing party is only afforded one direct appeal. For example, a loss in the district court may be appealed once to the court of appeals. While it is true that a loss in the court of appeals may be appealed to the Colorado Supreme Court, the supreme court has discretion to decide whether or not it will hear your case.

After going through the lengthy trial process, most litigants presume that their trial level attorney will handle the appeal. After all, who knows the case better than he or she does? In reality, however, most trial level attorneys will not handle appeals as a rule. Think of it this way: you wouldn’t seek out an appellate specialist to handle your case at the trial level, so why would you pursue an appeal with a trial specialist?

Your trial level attorney will still be an important part of your appeal. It is common practice for an appellate attorney to discuss a case with the trial level attorney in order to determine what he or she believes to be important issues for appeal. Moreover, the trial level attorney will be responsible for forwarding the case file to the appellate attorney.

Your appellate attorney will look at the case with an objective, fresh eye, and a working knowledge of effective appellate arguments. In some cases, the best post-conviction argument will be that the trial attorney made an error, rendering his or her assistance as ineffective. Although attorney errors are common, it would be difficult for an attorney to argue that his or her own performance was deficient.

Moreover, appellate practice requires careful attention to appellate rules and procedures. Appellate specialists have a solid working knowledge of these rules and procedures because they work with them daily. Therefore, it takes them less time to draft compliant appellate documents. While a trial attorney can certainly look up and follow appropriate rules and procedures, there is no substitute for experience.

In any jurisdiction, an appeal is a legal proceeding through which a party that received an adverse decision seeks review of that decision in a higher court. An appeal is not an opportunity to re-litigate a case or present new evidence, but rather to point out an error that occurred in the trial court.

The first step to filing an appeal is determining what court has jurisdiction to hear your appeal, and when the deadline is to file your notice of appeal. It is vital that you file your notice of appeal within the correct deadline with the correct court. In most cases, failure to do so will be fatal to an appeal.

The reviewing court will decide your appeal based on the record. The record contains pertinent documents evidencing what happened at the trial level, including pleadings, transcripts, and orders. Generally, a litigant cannot add newly discovered materials to the record. It is important to show that the alleged error has been preserved – meaning that you or your attorney pointed out the error via objection or motion, and the trial court had an opportunity to issue an appropriate ruling.

The process of an appeal is lengthy and uneventful. You or your attorney will review the record, then make your argument in writing (your opening brief). The appellee will have an opportunity to file a written answer to your opening brief, after which you may (but are not required to) file a reply brief. Following submission of these three briefs, neither party is permitted to file any additional materials. In most cases, the court will decide the case based on the briefs and record, then file a written decision.

To become a justice, an attorney must be recommended by the Colorado Supreme Court Nominating Commission. The nominating commission is made up of seventeen members, eight of which are non-attorneys. To serve on the commission, a potential member must apply with the nominating commission liaison. Of the nominees, the Governor of Colorado will appoint one to serve. The appointed nominee will serve an initial term of ten years, and then must earn retention through a general election.

Because of the nomination scheme, judicial terms will expire periodically as a particular justice’s term ends. A justice who achieves initial retention will then begin serving a ten-year term. Justices may seek retention at the end of any ten-year term, but must retire at age 72.

Photographs, biographies, and contact information for current supreme court justices can be found on the Colorado Judicial Branch’s Web page, here.

The Colorado Court of Appeals consists of 22 judges each serving an eight-year term. To become a judge, an attorney must be nominated by commission, and then appointed by the Governor of Colorado. A newly nominated judge will serve a two-year term, and then must achieve retention through a general election. Judges who achieve retention will then begin serving their eight-year term.

Because of this nomination scheme, judicial appointments expire periodically as a particular judge’s eight-year term comes to a close. At the end of this term, the judge may seek retention for another term or retire. Judicial retirement is mandatory at age 72.

The judges hear and decide cases in panels of three. The chief judge – who is appointed to serve indefinitely by the Colorado Supreme Court – makes all case assignments. Currently, the honorable Alan M. Loeb serves as chief judge.

Photographs, biographies, and contact information for each judge can be found on the Colorado Judicial Branch Web page, here.

A particular court’s jurisdiction refers to what types of cases it is authorized to hear, or the scope of its power. A court of general jurisdiction is a court that can hear any type of case that may arise within its assigned geographic location, such as civil, criminal, or family.

Most state court systems divide jurisdiction between various courts. For example, a new case in the state courts of Colorado would be filed in a trial level court. Which trial level court depends on the type of case being filed: municipal court for municipal code violations, small claims courts for civil disputes valuing $7,500 or less, county courts for state law matters, civil disputes above the small claims limit, traffic offenses, and misdemeanor criminal offenses, and state district courts for felony offenses, civil matters exceeding the jurisdiction of county courts, and other specified matters.

Importantly, each of these courts have their own set of rules, deadlines, and procedures. For example, civil cases in the county courts are governed by the Colorado Rules of County Court Civil Procedure, whereas criminal cases in the county courts are governed by Colorado Rule of Criminal Procedure. Failure to adhere to the correct rules may result in dismissal of your case.

Most adverse decisions entered within trial level courts may be appealed. The court that has jurisdiction over a particular appeal is determined by the court that entered the final order at the trial level. The district court hears most appeals from the municipal courts and county courts (civil and criminal). Appeals from the district court are within the jurisdiction of the Colorado Court of Appeals. Finally, an adverse decision from the court of appeals may be appealed to the Colorado Supreme Court.

If you file your case in the incorrect court, the court will dismiss the matter for lack of jurisdiction – regardless of the merits of your claim.

The United States Court of Appeals for the Tenth Circuit is the federal appellate court with jurisdiction over the federal districts of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. In almost all cases, a would-be appellant cannot initiate a case in this court until he has received a final judgment within the district court. Through the ensuing appeal, the appellant can argue the district court erred in any order it issued prior to entry of final judgment.

Appeals before the Tenth Circuit are governed by the Federal Rules of Appellate Procedure (“Fed. R. App. P.”), which can be found here. These rules require the appellant begin by filing a notice of appeal that complies with Fed. R. App. P. 3 in terms of content, and Fed. R. App. P. 4 in terms of timeliness. As with an appeal before any court, it is vital that appellants adhere to the deadline to file a notice of appeal.

When filing the notice of appeal, the appellant must also pay the full appellate filing and docketing fee (currently $505) to the district court. Additionally, if a transcript is required for the appeal, appellant must request preparation of this transcript by filing a request with the district court.

Once the district court has determined that the record is complete, the court of appeals will set a deadline for filing all briefs. This deadline may be extended via motion, however these motions are disfavored. If you anticipate needing additional time, it is best to file a motion for extension at least five days prior to expiration of a deadline.

Appellant’s opening brief should comply with requirements in both the Federal Rules of Appellate Procedure as well as the 10th Circuit Local Rules. These requirements govern the format, content, length, and service requirements of the opening brief. The appellant’s opening brief will be followed by the appellee’s answer brief, and appellant’s optional reply brief.

If your case is scheduled for oral argument, you will be notified of this decision approximately two months ahead of your scheduled argument date. Litigants are generally permitted 15 minutes of argument, each. Following oral argument (if scheduled) or submission on briefs (if no argument is scheduled), the court will issue a written decision. There is no timetable for determining how long a decision may take.

In most cases, a loss in a Colorado District Court case may be appealed directly to the Colorado Court of Appeals. In order to preserve the opportunity to pursue an appeal, however, a litigant must pay careful attention to the Colorado Appellate Rules (“CAR”) and the deadlines contained therein.

The first step is filing and serving a notice of appeal. This document must contain all information required by either CAR 3(d) (civil cases), or CAR 3(g) (criminal cases). To file, the litigant must (1) serve the original on the court of appeals, and (2) provide a copy to the trial court and all parties. The deadline for completing these actions is generally 49 days following entry of the order appealed from.

The filing fee for a notice of appeal is currently $223. You may additionally be required to pay an appellate bond of $250 to the district court – the clerk can advise whether this fee is applicable to your case. If you cannot pay these fees, you may complete and file Form JDF 205, which can be downloaded from the Colorado Judicial Branch’s Web page, here, to request a waiver.

Within 14 days after filing the notice of appeal, you must file and serve the designation of record on appeal. As with the notice of appeal, this document must be filed with both the district court and the court of appeals. At this point in the appeal, it is also important to ask the clerk how to begin ordering necessary transcripts.

Within 13 weeks of filing the designation of record on appeal, the district court will send the case record to the court of appeals. This event begins the clock on your deadline to file your opening brief: 42 days after the record is filed. If you chose to draft appellate documents yourself, pay attention to the court’s strict formatting rules contained in CAR 32, as well as content requirements contained in CAR 28.

In your opening brief, you must explain how the district court erred, and why the court of appeals should address the error. Importantly, an appeal must be based on the record and cannot incorporate any new information. The opposing party will have 35 days from service of your opening brief to file an answer brief, then you may choose to file and serve a reply brief within 21 days of service of the answer. The court will likely decide your case without a hearing and issue a written decision.

As a litigant in a civil county court case, you have the option to appeal an adverse order to the district court of the same county. This type of appeal is governed by Colorado Rule of County Court Civil Procedure 411, and has different rules and deadlines than a traditional appeal to the Colorado Court of Appeals.

To initiate an appeal, the appellant must file two documents within 14 days of entry of the adverse judgment:

Notice of Appeal: One original to the county court, one original to the district court, and one copy to every party; and

Designation of Record: One original to the county court, one original to the district court, and one copy to every party.

A fill-in-the-blank version of these forms can be downloaded from the Colorado Judicial Branch’s Web page, here. When you file these documents, you will also have to pay a filing fee of $163, and pay an appeals bond (amount determined by the court) in cash or certified funds. At this point, you should also ask the clerk what the court’s procedures are for ordering case transcripts, and provide a self-addressed stamped envelope that the Court will use to provide you a copy of the written opinion.

Once you have timely filed all necessary documents and paid all necessary fees, the county court will prepare the court record within 42 days. Your appellate brief must be filed with the district court and served on all other parties within 21 days of the court’s filing of the record on appeal. The District Attorney will have 21 days following receipt of your brief to file an answer.

After briefs have been filed, the district court will decide your appeal without a hearing, and mail a written ruling to all parties.

Welcome to The Alderman Appeals Blog!

The Alderman Appeals Blog is offered as a public service of the Alderman Law Firm. Through the blog, our experienced attorneys offer expert advice and guidance concerning the appellate process. Readers are invited to post comments or contact the Alderman Law Firm with questions.

About the Contributors

Kimberly Alderman-Penix is the managing attorney of the Alderman Law Firm. She has been a judicial clerk, a firm attorney, and a law school professor. When she is not lawyering, she is traveling, mountaineering, or writing.

Chelsey Dahm-Bradley is an associate attorney at the Alderman Law Firm. She holds a B.B.A. in Management, earned her J.D. in just 2 years, and held an internship with the US District Court for the Western District of Wisconsin. In her non-lawyer life, she is an avid dancer.

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